PROVENTION BIO, INC. Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Purchaser will commence a tender offer (the "Offer") to
purchase all of the issued and outstanding shares (the "Shares") of common
stock, par value
The Merger Agreement contemplates that the Merger will be effected pursuant to
Section 251(h) of the General Corporation Law of the
Following the consummation of the Offer and subject to the terms and conditions of the Merger Agreement, Purchaser will merge with and into the Company pursuant to the provisions of Section 251(h) of the DGCL as provided in the Merger Agreement, with the Company being the surviving corporation. At the effective time of the Merger (the "Effective Time"), each Share (other than (i) Shares held in the treasury of the Company, (ii) Shares owned by Parent, the Company or any of their respective direct or indirect wholly-owned subsidiaries (other than Purchaser), (iii) Shares irrevocably accepted for purchase in the Offer and (iv) Shares held by stockholders who have properly demanded appraisal of such Shares in accordance with the DGCL) will be cancelled and converted into the right to receive an amount in cash equal to the Offer Price, less applicable withholding of taxes.
The Merger Agreement includes customary representations, warranties and covenants of the Company, Parent and Purchaser. The Company has agreed to use commercially reasonable efforts to carry on its business in the ordinary course until the Effective Time. The Company has also agreed not to solicit or initiate discussions with third parties regarding other proposals for a strategic transaction involving the Company. Parent and Purchaser have agreed to use reasonable best efforts to take actions that may be required in order to obtain antitrust approval of the proposed transaction, subject to certain limitations.
The Merger Agreement also includes customary termination provisions for each of
the Company and Parent, subject, in certain circumstances, to the payment by the
Company of a termination fee of
The Company Board unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable and fair to, and in the best interests of, the Company and the holders of the Shares, (ii) adopted the Merger Agreement and approved the execution, delivery and performance by the Company of the Merger Agreement and the . . .
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
The Amendments correct a scrivener's error in the calculation of the executives'
severance entitlements in connection with a change in control. Under the
Amendments, if an executive's employment is terminated by the Company without
cause or by the executive for good reason within twelve (12) months following a
change in control of the Company, in lieu of the pro-rata annual bonus paid over
the applicable severance period under his or her employment agreement to which
the executive was previously entitled under such agreement, he or she will
instead be entitled to receive payment of an amount equal to a multiple of his
or her then-current target annual bonus (2.0x for
The foregoing summary of the principal terms of the Amendments does not purport to be complete and is qualified in its entirety by reference to the full copies of the Amendments filed hereto as Exhibits 10.1, 10.2, and 10.3 and incorporated herein by reference.
Prior to the execution of the Merger Agreement, on
The foregoing summary of the principal terms of the Letter Agreements does not purport to be complete and is qualified in its entirety by reference to the full copies of the Letter Agreements filed hereto as Exhibits 10.4, 10.5, and 10.6 and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
With respect to stockholder nominees to the Company Board, updates to the
Amended Bylaws provide, among other things, that stockholders must appear at the
stockholder meeting to present a nomination or other business and a prohibition
on additional or substitute nominations following the expiration of the time
periods set forth in the Amended Bylaws for timely written notice. Additional
changes to the Amended Bylaws include (i) removing the requirement for the
Company to produce and keep for inspection by any stockholder at the time and
place of a meeting of stockholders a complete list of the stockholders entitled
to vote at such meeting, (ii) setting forth additional requirements regarding
the information stockholders must submit and representations stockholders must
make in connection with providing advance notice of stockholder meeting
proposals and director nominations, (iii) providing that notice of an adjourned
meeting shall be given in accordance with the DGCL, and (iv) requiring that a
stockholder comply with the requirements of the
The foregoing is not a complete description of the Amended Bylaws and is qualified in its entirety by reference to the full text and terms of the Amended Bylaws, a copy of which is attached hereto as Exhibit 3.1 hereto and incorporated herein by reference.
Item 8.01 Other Events.
On
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Additional Information and Where to Find It
The tender offer referenced in this Current Report on Form 8-K has not yet
commenced. This communication is for informational purposes only and is neither
an offer to purchase nor a solicitation of an offer to sell shares of
Provention, nor is it a substitute for the tender offer materials that Parent
and its acquisition subsidiary will file with the
In addition to the Solicitation/Recommendation Statement, Provention files
annual, quarterly and special reports and other information with the
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements that are
subject to risks, uncertainties and other factors that could cause actual
results to differ materially from those implied by the forward-looking
statements. All statements other than statements of historical fact are
statements that could be deemed forward-looking statements, including all
statements regarding the intent, belief or current expectation of Provention and
members of its senior management team and can typically be identified by words
such as "believe," "expect," "estimate," "predict," "target," "potential,"
"likely," "continue," "ongoing," "could," "should," "intend," "may," "might,"
"plan," "seek," "anticipate," "project" and similar expressions, as well as
variations or negatives of these words. Forward-looking statements include,
without limitation, statements regarding the proposed transaction, similar
transactions, prospective performance, future plans, events, expectations,
performance, objectives and opportunities and the outlook for Provention's
business; the commercial success of Provention's products; the potential
benefits of the potential acquisition; the anticipated timing of clinical data;
the possibility of unfavorable results from clinical trials; the timing of and
receipt of filings and approvals relating to the transaction; the expected
timing of the completion of the transaction; the ability to complete the
transaction considering the various closing conditions; and the accuracy of any
assumptions underlying any of the foregoing. Investors are cautioned that any
such forward-looking statements are not guarantees of future performance and
involve risks and uncertainties and are cautioned not to place undue reliance on
these forward-looking statements. Actual results may differ materially from
those currently anticipated due to a number of risks and uncertainties. Risks
and uncertainties that could cause the actual results to differ from
expectations contemplated by forward-looking statements include: uncertainties
as to the timing of the tender offer and merger; uncertainties as to how many of
Provention's stockholders will tender their stock in the offer; the possibility
that various closing conditions for the transaction may not be satisfied or
waived, including that a governmental entity may prohibit, delay or refuse to
grant approval for the consummation of the transaction; the occurrence of any
event, change or other circumstance that could give rise to the termination of
the merger agreement; the effects of the transaction (or the announcement
thereof) on relationships with associates, customers, manufacturers, suppliers,
other business partners or governmental entities or patient groups; transaction
costs; the risk that the merger will divert management's attention from
Provention's ongoing business operations; changes in Provention's businesses
during the period between now and the closing; risks associated with litigation;
failure to maintain FDA approval for TZIELD; uncertainties that the planned
commercial launch in the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of March 12, 2023 , among the
Company, Parent and Purchaser (pursuant to Item 601(a)(5) of
Regulation S-K, the Company hereby agrees to supplementally furnish to
the SEC upon request any omitted schedule or exhibit to the Agreement
and Plan of Merger).
3.1 Amended and Restated Bylaws of Provention Bio, Inc. , as adopted on
March 9, 2023
10.1 Second Amendment to First Amended Employment Agreement, dated March
9, 2023 , by and between the Company and Ashleigh Palmer .
10.2 Second Amendment to Employment Agreement, dated March 9, 2023 , by
and between the Company and Thierry Chauche.
10.3 Second Amendment to First Amended Employment Agreement, dated March
9, 2023 , by and between the Company and Eleanor Ramos .
10.4 Letter Agreement, dated March 12, 2023 , by and between the Company
and Ashleigh Palmer .
10.5 Letter Agreement, dated March 12, 2023 , by and between the Company
and Thierry Chauche.
10.6 Letter Agreement, dated March 12, 2023 , by and between the Company
and Eleanor Ramos .
99.1 Joint Press Release, dated March 12, 2023 , issued by the Company and
Parent.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).© Edgar Online, source
